William R. Snyder, Jr., Slipping Down the Slope of Probable Cause: An Unreasonable Exception to What Was Once a Reasonable Rule: Hiibel v. Sixth Judicial District Court, 124 S. Ct. 2451 (2004)

57 Fla. L. Rev. 445 (2005) | | | |

TEXT :: Upon receiving a call reporting possible domestic violence, a sheriff’s deputy in Humboldt County, Nevada detained Petitioner under the authority of a state statute allowing an officer to “stop and identify” a person suspected of criminal behavior. During the course of the detention, the deputy repeatedly asked Petitioner to identify himself, but Petitioner refused. The deputy then arrested Petitioner for obstructing an officer’s legal duty in failing to provide his name. A justice of the peace in Union Township tried and convicted Petitioner, finding that Petitioner’s actions violated a state statute. The district court affirmed Petitioner’s conviction after finding the public interest in requiring Petitioner to identify himself to be more sacrosanct than the constitutional rights violated. Petitioner appealed to the Supreme Court of Nevada, which, sitting en banc, held that the Nevada statute allowed a reasonable and minimal invasion of personal privacy and was constitutional under the Fourth Amendment. Again Petitioner appealed, this time to the United States Supreme Court. The Court granted certiorari, and affirming the line of decisions below, HELD, that a suspect detained on reasonable suspicion who refuses to surrender his identity contrary to state law cannot claim a seizure violative of the Fourth Amendment.

The Fourth Amendment protects against unreasonable searches and seizures. In defining what qualifies as a reasonable search and seizure, courts once followed a bright-line rule requiring probable cause, as the Fourth Amendment seemingly requires. However, the United States Supreme Court’s decision in a landmark case signaled the beginning of the Court’s willingness to reconsider the traditionally strict limitations of the Fourth Amendment.


Terry v. Ohio, decided in 1968, was the Court’s first inquiry into whether a lesser standard of suspicion could satisfy the Fourth Amendment’s requirement of probable cause in effectuating a seizure. In Terry, the Court considered whether the public interest in safety allows a police officer to frisk a suspect even though the officer has no probable cause for the suspect’s detention. Contrary to years of Fourth Amendment jurisprudence, which had viewed probable cause as an unyielding principle, the Terry Court seemed to view the requirement of probable cause as a manipulable continuum, wherein personal liberties could be sacrificed so long as the government interest was substantial. Thus, the Court stated that the new test for a Fourth Amendment seizure required balancing the need for the search against the invasiveness of the search.

The Terry Court recognized the serious intrusion upon the sanctity of the person caused when an officer detains an individual and restricts his freedom. However, the Court reasoned that a minor exception to the requirement of probable cause was justified by the possible harm an armed suspect can cause to the public or to the arresting officer. Accordingly, the Court held that when a suspect is believed to be armed and dangerous, an officer has a limited right to detain the individual and ensure his own safety by performing a restricted patdown of the suspect, regardless of whether probable cause exists. Hence, the Court’s ruling was simply intended to be a minor exception ensuring the safety of the law enforcement officer. Stressing that the probable cause requirement could not be circumvented arbitrarily by a police officer, the Court failed to address all the limitations that the Fourth Amendment places on governmental intrusion. After abolishing the old bright-line requirement of probable cause, the Court explicitly recognized the difficulty of forming a new bright-line rule predicated on a diminished standard of probable cause.

In Papachristou v. City of Jacksonville, the Court reconsidered some aspects of Fourth Amendment jurisprudence in light of the discretionary power some states gave law enforcement officers. Papachristou involved a municipal ordinance that permitted police officers to arrest citizens on a variety of pretexts, ranging from vagrancy to juggling to living off the earnings of one’s own wife. The ordinance, in the guise of a criminal regulation, gave officers nearly unfettered discretion in identifying and arresting suspicious characters. In Papachristou, the petitioner and her friends were seen by officers parked in front of a used-car lot. The same used-car lot had been burglarized several times. Suspecting that the petitioner was somehow involved with the previous robberies, the officer arrested the petitioner. The petitioner was then convicted under the Jacksonville ordinance for “prowling by auto.” The City of Jacksonville defended its law on the grounds of police efficiency, arguing that vagrancy statutes were desirable because they allowed police to prevent crimes before they occurred.

Striking down the ordinance, the Court noted that the ordinance granted too much discretion to officers, allowing them to arrest suspects without the probable cause demanded by the Fourth Amendment. Whereas the Fourth Amendment was intended to serve as a check on police power, the Jacksonville ordinance was so broad as to allow arrest on nothing more than a vague suspicion of criminal activity. Moreover, the Court noted that “[a]rresting a person on suspicion, like arresting a person for investigation, is foreign to our system.” The Court found that the ordinance, in effect, made criminal those activities that by modern standards are typically considered innocuous. Even though the broad terms of the vagrancy ordinance greatly augmented the arsenal of law enforcement, the Court held that the resulting infringement on personal liberties could not be justified on the grounds of deference to governmental interests.

Hayes v. Florida was another instance in which the Court considered the limitation of personal liberties in pursuit of protecting law enforcement power. Suspected of playing a role in a series of burglary-rapes, the petitioner in Hayes was detained by police officers, taken to the police station, and fingerprinted. However, during the investigation, the police officers lacked both probable cause and a warrant. At issue in Hayes was whether the suspect could be detained on the diminished standard of reasonable suspicion where no danger existed to the arresting officer and where the purpose of the detention was simply to enable police to prosecute criminal activity more effectively.

Applying the Terry balancing test, the Hayes Court refused to expand the Terry doctrine, finding that the interests furthered by the police action were insufficient to overcome the violation of the petitioner’s Fourth Amendment liberties. Even though the fingerprinting performed in Hayes was a less serious intrusion than other types of imaginable searches and detentions, the Court mirrored the reasoning in Papachristou, refusing to uphold a diminished standard of suspicion simply to ensure greater police efficacy. Implicitly recognizing that probable cause can be bent to protect heightened government interests but cannot be broken for the sole purpose of enabling greater law enforcement efficacy and authority, the Hayes court refused to allow another exception to the Fourth Amendment.

In the instant case, the Court relied on the Terry test to determine whether the sheriff’s deputy had unreasonably seized Petitioner. Balancing the intrusion on Petitioner’s Fourth Amendment rights against the promotion of legitimate aims through Petitioner’s seizure, the Court found that Petitioner’s arrest for failure to identify himself was permissible under the Fourth Amendment. Unlike in Hayes, where the Court viewed an investigatory detention without probable cause as a circumvention of the Fourth Amendment, the instant Court embraced the expansion of Terry as an effective means of protecting the safety of law enforcement officers and ensuring the efficacy of criminal investigations.

The instant Court began its analysis by recognizing the governmental interests served by requiring a suspect to provide his name while detained in the course of a Terry stop. The safety of the police and the public in dangerous situations was the foremost interest the Court recognized. In addition, the instant Court noted that forcing a suspect to provide his name would provide a secondary benefit: it would make the task of police investigation more efficient. Thus, in its reasoning, the Court gave considerable weight to the interests furthered by the detaining officer’s learning a suspect’s name.

Having found the governmental interests at stake substantial, the Court moved to the second prong of the balancing test: the intrusion on the Petitioner’s Fourth Amendment rights. The Court observed that, because the additional act of demanding a suspect’s name did not change the basic purpose, rationale, or practical demands of a Terry stop, the Terry stop remained reasonable. Thus, finding the intrusion in the instant case no greater than it would have been under a normal Terry stop, the instant Court stated that requiring a suspect to disclose his name was no great imposition on that individual’s rights.

Evaluating the prongs of the Terry balancing test, the Court determined that the facts of the instant case weighed heavily in favor of protecting the government’s interests and allowing a police officer to demand a suspect’s identity. Although Petitioner argued that an individual’s right to privacy had been tacitly acknowledged by the Court for many years, the Court rejected Petitioner’s argument, finding that the right to privacy hinges upon the importance of the governmental interests at stake. Ultimately determining the government interests at stake to be significant and the invasions on personal privacy to be de minimis, the Court affirmed the decisions of lower courts, holding the Nevada statute constitutional.

Joined by Justices Souter and Ginsburg in his dissent, Justice Breyer criticized the majority for straying from recognized limitations on Terry stops. Justice Breyer argued that in light of the general right of privacy under the Fourth Amendment, the intrusion on Petitioner’s liberty interest was much more insidious than the majority acknowledged. Finally, although conceding the importance of the Terry stop exception to the Fourth Amendment, Justice Breyer concluded that probable cause should be inviolable against further exceptions to the Fourth Amendment.

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